Pot Matters: Racial Disparities After Legalization and Other Reforms

Here is a lesson from history: Any law criminalizing marijuana will disproportionately affect racial minorities, especially African Americans.

Personal use quantities of marijuana were legalized in Colorado and Washington in 2012 (going into effect in 2013), and it has become popular to refer to these laws as “legalizing marijuana” in each state. But many offenses related to marijuana use remain criminalized—such as possession of amounts not authorized by law and both the cultivation and sale of marijuana outside the legal regulatory system.

In other words, both states still arrest people for marijuana offenses.

Arrest data from the Uniform Crime Reporting (UCR) program—which takes a few years to be collected and made public—has recently been released for 2014 for both states. Along with data for 2013, these recent numbers reveal something interesting about the impact of this limited form of legalization on racial disparities in marijuana arrests in each state.

For context, take a look at marijuana arrest trends in other states. Let’s examine arrest trends in Virginia, a non-reform state, along with two states that replaced criminal arrests with civil infractions (Massachusetts and California).

In Virginia, marijuana possession arrests have been increasing over the last few years, from 14,304 in 2005 to 19,748 in 2014. In 2005, the arrest rate for blacks was 2.8 times higher than for whites, and by 2014, the black rate was 3.3 times higher. The same racial disparity exists for sales arrests, which rose from 1,714 in 2005 to 2,354 in 2014. The arrest rates for blacks was 4.2 times higher in 2005 and, while fluctuating over the years, was 4.4 times higher than whites in 2014.

Massachusetts replaced a criminal penalty for marijuana possession with a civil infraction, reducing possession arrests from 8,282 in 2008 to 1,230 in 2009 and dropping to 530 in 2014. In 2008, the arrest rate for blacks was 3.5 times higher than for whites. In 2009, the first year of the change, the black rate for the remaining criminal arrests for marijuana possession was 5.4 times higher than for whites, and, after falling in subsequent years, was still 3.3 times higher than for whites in 2014—basically the same disparity before the reform. In arrests for sales, the black rate was 5.9 time higher in 2008, and in 2014, it was 7.1 times higher than the arrest rate for whites.

California also dropped the criminal penalty for possession and replaced it with a civil infraction, and this went into effect in 2011. (Yes, California “decriminalized” marijuana long before this, but it remained a criminal infraction and the citation issued for violations was a court summons resulting in a fine.) The number of criminal violations for possession dropped from 56,685 in 2010 to 10,242 in 2011. In 2010, the arrest rate for blacks was 2.2 time higher than for whites, and in 2014, it remained 1.4 times higher. For sales offenses, the arrest rate for blacks was 4.1 times higher than the rate for whites in 2010, and it was 3.4 times higher than for whites in 2014.

Significant reform reduces the number of violations subjected to criminal arrest, but racial disparities in which blacks are disproportionately arrested remain. It should not surprise anyone that the same trend occurs in Colorado and Washington after they legalized small amounts for personal possession.

In Colorado, also a decriminalization state prior to reform, arrests for marijuana possession dropped from 9,586 in 2012 to 4,979 in 2013 and rose again to 5,384 in 2014. In 2012, the arrest rate for blacks for marijuana possession offenses subject to arrest in Colorado was 1.7 times higher than for whites, and in 2014, the arrest rate for blacks was 2.5 times higher than for whites. (This is what is reflected in the data the state supplied to the UCR program. Colorado has begun reporting data in a different manner as part of a new data collection program called the National Incident Based Reporting System, NIBRS, and this program categorizes and counts arrests differently than the UCR program. Subsequently Colorado’s official data for marijuana arrests reports a higher number of arrests using the NIBRS data than what was reported to the UCR program. However, the trends in racial disparities are consistent in both reporting programs.)

For sales offenses, the UCR data indicates that while the racial disparity in arrests has been reduced since legalization, it still remains. In 2012, the arrest rate for blacks was 4.4 times higher than for whites, and in 2014, it was 2.7 times higher.

In the state of Washington, there were 7,139 arrests for marijuana possession in 2011, the year before legalization was approved by the voters. The year of the election (2012), there were 5,506 arrests, and this dropped to 1,631 in 2014. But there was no change in the rate of racial disparity in possession arrests. In 2012, blacks were arrested at a rate 2.3 times higher than whites, and the same disparity occurred in 2014. In sale arrests, blacks were arrested at a rate 3.5 times higher than whites in 2012 and at a rate 3.1 times higher than whites in 2014.

It doesn’t matter if a state has reformed its marijuana laws or not when it comes to racial disparities in marijuana arrests. Blacks are arrested at a higher rate than whites for any criminal offense (possession or sales) related to marijuana. This is true in states that have replaced criminal arrests with civil infractions, and it is true in states that have legalized personal use quantities of marijuana.

This is a lesson from history: Any law criminalizing marijuana will disproportionately affect racial minorities, especially African Americans. The only way to prevent police from using marijuana laws to harass minority communities is to repeal those laws.